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September 19, 2009

Is Japan's death penalty now about to be killed?

When I teach the death penalty, I often urge student to note and reflect on the fact that Japan is like the US in being a modern industrialized democratic nation that has continued to use the death penalty. But this new piece in The Times of UK, which is headlined "Japan’s death penalty effectively scrapped with arrival of Keiko Chiba," suggests I may soon have to update my teaching notes. here is how the piece starts:

Capital punishment has been unofficially scrapped in Japan with the appointment of a left-wing justice minister who is an outspoken opponent of the country’s controversial system of secret executions.

Keiko Chiba, 61, a lawyer and former member of the Japan Socialist Party, has the final say in signing execution orders for the country’s 102 death-row inmates. Although she has declined to say explicitly whether or not she will authorise them, her 20-year record as an active death penalty abolitionist means that hangings will be put on hold after surging in the past three years....

Japan is the only industrialised democracy, apart from the United States, to maintain capital punishment. Campaigners opposed to the death penalty also say that it is carried out in a manner designed to avoid public scrutiny.

Once final appeals have been exhausted, death-row inmates can meet only their lawyers and immediate family members. Hangings are usually carried out during parliamentary holidays to prevent the subject from being raised in parliament. The condemned prisoner is told of his imminent execution only a few hours before it is carried out. His family are informed afterwards, when they are invited to collect his remains.

This local article, headlined "Inmate's execution delayed for 10 days," provides more of the details and debate surrounding Ohio's efforts to try to execution again Romell Broom after its botched first attempt:

A second attempt to execute condemned killer Romell Broom, who says he endured "torture" and cried in pain during the first aborted try, was delayed yesterday under an agreement between Broom's attorneys and the state....

The order expires at 11:59 p.m. Sept. 28. U.S. District Judge Gregory L. Frost has set a hearing for 9 a.m. that day to consider a request by Broom's attorneys for a preliminary injunction against the execution. Broom attorney Timothy Sweeney of Cleveland said yesterday that he doesn't expect the execution will go forward "any time in the near future."...

The Ohio Association of Criminal Defense Attorneys sent a letter to Strickland on Thursday calling for a moratorium on the death penalty, and the governor's office said it has received 30 calls and 110 e-mails mentioning a moratorium....

Cuyahoga County Prosecutor Bill Mason opposed delaying Broom's execution, saying Broom has not been subjected to pain greater than any other prisoner who had problems with an IV. He also cited the need for finality for the victims.

As detailed by this postat Crime & Consequences, Kent Kent Scheidegger is troubled not only with the stay but with how the Ohio AG is handling this matter:

[The stay is] not a surprise, but the Ohio AG is going to get the stay lifted, by the Supreme Court if necessary, right? No! They actually consented to it! "Attorneys for the state consented to the request for a delay from Broom's attorneys, who will argue that the pain Broom experienced during the aborted attempt violates a constitutional ban on cruel and unusual punishment."

And what is this horrible torture? "Broom told his attorneys he was pricked as many as 18 times Tuesday as prison staff tried to find a suitable vein."

Poor baby! He suffered 18 pinpricks! Remember what this guy did. "Broom was convicted in the 1984 rape and murder of a 14-year-old girl after abducting her at knifepoint while she was walking home from a football game with friends." Instead of calling the pinpricks the preposterous basis for further delay that it is, the Ohio AG consents?! What are they smoking?

For anyone eager to keep up with all of the particulars, be sure to check out this great page at Lethal Injection.org, which has posted a lot of the legal papers and commentary surrounding the Broom case.

This Los Angeles Times article, headlined "Governor's prison plan seeks more time to reduce inmate population: Schwarzenegger's proposal is submitted to federal judges Friday evening, only hours before the deadline," reports on the latest prison reform doings in California. Here are the basics from the start of the article:

Gov. Arnold Schwarzenegger on Friday evening gave federal judges a road map to reducing state prison overcrowding. But the proposal would take more than twice as long as the judges ordered to make the improvements they demanded and would fall short if state lawmakers did not approve certain provisions, administration officials said.

The plan appears to set up a confrontation between the governor and the judges, who made their impatience clear in ordering the state to forge a plan to reduce the number of inmates by 40,000 within two years. Schwarzenegger's plan would take five years -- if lawmakers sign off on it.

Under a second scenario, if lawmakers balk at more prison changes than they reluctantly approved last week on the final day of the legislative session, the state would retain nearly 23,000 more inmates after two years than the judges have said is reasonable.

There was no indication Friday that legislators were more inclined to approve the proposals the governor included than they were when they dismissed some of the same ideas in recent weeks under pressure from law enforcement groups.

The governor's proposal avoids anything that could be portrayed as a mass release of criminals or that would leave him on a ledge without lawmakers' support. A combination of prison construction and a variety of generally modest steps to reduce inmate numbers, it is limited to maneuvers for which he already has authority or might receive it.

If the judges find that the state's proposal violates the order they issued Aug. 4, they could hold officials in contempt. The judges could also ask inmates' attorneys to present their own plan to reduce overcrowding and order the state to implement it.

The court submission by the state of California can be accessed at this link.

Another prominent athlete presents another potential Second Amendment test case

Regular readers know that I was disappointed that Plaxico Buress did not assert a serious Second Amendment claim after being charged and prosecuted in New York with serious crimes based on his possession of a gun for personal self-defense (details here and here and here). Now, as detailed in this Washington Post article, another prominent athlete present another potential Second Amendment test case:

A D.C. area native-turned-NBA player was arrested in Prince George's County on Thursday after a police officer who pulled him over on the Beltway found that he was carrying three loaded guns, authorities said.

Delonte West, 26, a graduate of Greenbelt's Eleanor Roosevelt High School and a guard for the Cleveland Cavaliers, was traveling north on the Beltway in a three-wheeled motorcycle called a Can-Am Spyder when he cut off a Prince George's canine officer near Route 214, authorities said. The officer pulled over West for making an "unsafe lane change," police said, and when the officer approached the motorcycle, West told him he had a handgun in his waistband.

That prompted the officer to call for backup and search West's vehicle. He found three guns -- a Beretta 9mm in West's waistband, a Ruger .357 magnum strapped to his leg and a shotgun in a guitar case slung over his back, said Maj. Andy Ellis, a spokesman for the Prince George's police.

Police charged West with two criminal counts of carrying a handgun for the Ruger and the Beretta, and issued him a traffic citation for driving "in excess of reasonable and prudent speed," court records show. Ellis said West was within his rights to carry the shotgun.

It is not clear why West was so heavily armed or why he was traveling alone in the Largo area at 10 p.m. on a Thursday, Ellis said. West's father, Dmitri West, said, "All I can say is Delonte was looking behind his back and protecting himself." He said his son was looking out for both specific people and because he was generally concerned about his well-being as a high-profile athlete. He declined to say who might be targeting the NBA star. "Bottom line is there's a lot of not-too-nice people out here," Dmitri West said....

Police arrested West and seized his guns and his motorcycle, Ellis said. He was released from jail early Friday on his personal recognizance, court records show. He is scheduled to appear in court Nov. 20.

Though I am not an expert on Maryland law, I think West may only be facing misdemeanor charges and thus West and his lawyers might not need to bring in Heller and the Second Amendment in order to ensure that these gun possession charges go away quickly. Nevertheless, if Heller stands for the proposition that the Second Amendment protects a persons right to possess guns for self-defense, it seems that West's gun possession might arguably be constitutionally protected.

Yet another noteworthy below-guideline federal child porn sentence

This local story from Washington state, which is headlined "2½-year sentence for man with 1,300 CDs of child porn," provides yet another example of the uncertainty and disparity surrounding federal sentencing for child porn offenses. First the facts as reported:

A former Little League coach who was found to have over a thousand CDs full of child pornography images was sentenced to 32 months in prison Friday. In addition, 60-year-old Benny L. Hill will be required to have 15 years of supervised release.

Agents were clued in to Hill's stash while investigating a Fairfield, Conn. man on child pornography charges. Investigators found Hill's email address, "Stoned_coach," and learned the Fairfield man had been trading child pornography with Hill over the Internet. When agents searched Hill's Kelso home on March 12, 2008, they discovered 1,300 CDs full of child pornography images.

In fact, the collection was so large, "agents abandoned efforts to continue counting all the images and videos," said Assistant United States Attorney David Reese Jennings. Hill was arrested and last August, pleaded guilty to possession of child pornography.

"I cannot overstate the revulsion in our community, nor the serious and insidious impact on our culture, or how these offenses raise levels of fear in our society," U.S. District Judge Ronald B. Leighton said in a statement released after sentencing Friday. "The joy of childhood is constrained by parents who are scared to death by the people who are inspired, motivated, and titillated by those who possess this material."

Prosecutors had asked for a sentence of just over 8 years.

Now, my questions and concerns:

Why were federal prosecutors only asking for an 8-year sentence here for a guy with a huge (record-setting?) collection of child porn who seems to have been an active trader, when federal prosecutors in other cases have sought decade-long sentences for seemingly much less serious child porn offenders?

How does the judge's bold statement jibe with his significant downward variance?

Will the government appeal this relatively low sentence for what seems to be an especially serious child porn offender?

Am I the only one who thinks it is perversely funny that the defendant here is named Benny Hill?

Virginia Supreme Court rules that school boards decide whether sex offender can go on school property

This local article, which is headlined "Schools can ban sex offenders," reports on an interesting ruling yesterday from the Virginia Supreme Court:

School boards — not judges — have the final say about whether violent sex offenders or anyone else comes onto school property, according to a Supreme Court of Virginia opinion handed down Friday. The opinion, which was written by Justice Barbara Milano Keenan, reverses a decision from the Charlottesville Circuit Court allowing a sex offender to come onto Charlottesville public school property under certain conditions.

Stacy Haney, a Richmond-based lawyer who represents the city’s School Board, said school supervision is vested in local school boards under the state’s Constitution. Haney said the Supreme Court’s opinion would be far-reaching. “This case will have implications for every single public school division in Virginia,” Haney said....

The petitioner in the case, who filed under the pseudonym John Doe, was convicted in 1999 of two counts of taking indecent liberties with a child while in a custodial or supervisory relationship. They are considered sexually violent offenses, the opinion said, so Doe was required to register as a sex offender.

Under state code, sexually violent offenders are prohibited from entering public or private school or daycare center property unless they attend the school, vote there or have a court order.

Doe was released from incarceration in 2000 and completed his supervised probation uneventfully. He filed a petition seeking permission to go onto school grounds to pick up his stepson and attend activities involving the child. Circuit Judge Edward L. Hogshire granted the request over the School Board’s objections, Haney said, imposing conditions to limit Doe’s on-campus time and requiring him to give the principal notice before coming to school activities.

“As long as Doe did what the order said, he could come onto property and the School Board couldn’t prohibit it,” Haney said. “What this opinion says is that while the trial court can enter an order lifting the statutory ban on sex offenders going onto the school’s property, the School Board retains the ability to say who can and can’t come onto school property.”...

Dave Chapman, commonwealth’s attorney for Charlottesville, said he believes Doe’s request under the statute was the city’s first. The prosecutor said the General Assembly likely would further refine the statute in the future.

The full ruling in this matter Virginia v. Doe can be found at this link. Here is how the court website summarizes the ruling:

A court order entered under Code § 18.2-370.5 granting a stepfather who is a convicted violent sex offender permission to enter public school property under certain specified conditions violates Article VIII, Section 7 of the Constitution of Virginia, which vests in school boards the supervisory authority over public schools. Code § 18.2-370.5 authorizes a circuit court to lift the statutory ban imposed by Code § 18.2-370.5(A), but allows the affected private entity or public school board to determine whether and under what circumstances an offender may enter onto school property. The judgment of the circuit court is reversed and the case is remanded for further proceedings.

Lots of useful information in latest FAMMGram

The homepage of Families Against Mandatory Minimums has this annoucement: "The FAMMGram is here! It's packed with news on efforts to change federal mandatory minimums, FAMM project updates and more." Among the features in this periodic newsletter that I found especially informative was (1) a piece on page 9 titled "State mandatory minimum reforms are far from rare," which details recent sentencing reforms in eleven states, and (2) a research update on page 12 that "highlights from the numerous reports that have been released so far in 2009" concerning various sentencing law and policy issues.

September 18, 2009

This AP article provide the latest, but certainly not the last, update on the litigation surrounding Ohio's botched execution attempt this past Tuesday and its plans to try again this Tuesday. Here are a few highlights:

An attorney for an Ohio inmate whose lethal injection failed this week asked the U.S. Supreme Court on Friday to halt an unprecedented second execution attempt, and cited in a separate affidavit the inmate's claims that executioners hit muscle and bone when they tried to find a vein suitable for injection.

Tim Sweeney, an attorney for Romell Broom, also filed lawsuits in federal district court and in the Ohio Supreme Court in Columbus on Friday arguing that a second execution attempt, scheduled for Tuesday, would violate Broom's civil rights. If unsuccessful in achieving clemency for Broom, Sweeney will argue that he shouldn't be executed until a new procedure can be put in place that ensures what happened on Tuesday won't be repeated. And trying again only a week later would be "unconscionable," Sweeney said....

In an affidavit from Broom that was to be submitted as evidence in the federal district court filing, Broom said officials first tried three separate times to access a suitable vein in the middle of both arms. He said nurses told him to take a break after those six attempts, after which the nurse tried twice to access veins in the left arm.

"She must have hit a muscle because the pain made me scream out loud," Broom said. "The male nurse attempted three times to access veins in my right arm. The first time the male nurse successfully accessed a vein in my right arm. He attempted to insert the IV, but he lost it and blood started to run down my right arm. The female nurse left the room. The correction officer asked her if she was OK. She responded, 'No' and walked out.

"The death squad lead made a statement to the effect that this was hard on everyone and suggested that they take another break."

Officials later moved to Broom's feet to find an accessible vein. "During this attempt, the needle hit my bone and was very painful. I screamed," Broom said in the affidavit....

On Friday, the American Civil Liberties Union of Ohio filed a public records request with the state in an attempt to learn information about the preparation for the first attempt, details about the attempt and information about preparations for the next scheduled attempt. The Ohio Association of Criminal Defense Lawyers sent Strickland a letter Thursday asking him to place a moratorium on Ohio executions given Tuesday's events.

A prisons spokeswoman said Thursday that officials at the Southern Ohio Corrections Facility where Broom is being kept in a cell in the infirmary in preparation for next week's attempt are monitoring how much he's drinking. Dehydration could make it more difficult to find veins, but the spokeswoman said there's no evidence that's what caused Tuesday's problems. In the affidavit, Broom said that on Monday, the day before the execution attempt, he drank seven cups of coffee, five cups of water and three cups of Kool-Aid.

Candidly, I will be a bit surprised if we make it though the weekend without some kind of stay ordered to prevent the state of Ohio from starting the execution process on Monday. It is my understanding that an execution process gets started a day or so before the actual scheduled execution (including the ordering of a last meal and all), so I will be surprised if all state and federal courts wait until Monday to rule on a stay. Though perhaps the state courts are hoping the federal courts will intervene first, and vice versa. In short, as I like to say, stay tuned.

An Ohio prisoner whose execution was halted on Tuesday, and then immediately rescheduled for next week, because technicians were unable to inject him with lethal drugs won a stay of execution on Friday.

The stay, issued by Judge Gregory L. Frost of the Federal District Court in Columbus, expires at 11:59 p.m. on Sept. 28. A hearing on a further stay has been scheduled for that day.

"Athlete's sentence: No prison, no sports"

The title of this post is the headline of this local Ohio article that a helpful reader sent my way. Here are the fascinating details:

Applause turned to gasps in a Butler County courtroom Thursday as a judge announced an unusual punishment for a Middletown track and football star: Dwayne "Deejay" Hunter is forbidden from playing organized sports during his five-year probation for a felonious assault conviction. "We're going to see who Dwayne Hunter the person is, not who Dwayne Hunter the star athlete is," declared Judge Andrew Nastoff, as he said Hunter still has a six-year prison sentence that would be imposed if he violates any conditions of his probation.

Nastoff had warned Hunter: "You're 19 years old. And you are standing right here, six inches away from a prison number and the potential to go away to prison for eight years - that's two presidential terms. You are right there," the judge said, drawing his index finger and thumb within an inch of each other. Then the judge announced, "You are not going to prison today."

When at least a dozen supporters applauded and cheered, Nastoff quieted the crowd and told anyone who couldn't control themselves to leave. Then he began outlining all the conditions of probation: no sports, not even intramurals; a $500 fine; 500 hours of community service, which can include his helping youngsters in Special Olympics, pee-wee football or other sports; plus 180 days in the Butler County Jail. With credit for time served, he will be released just before Thanksgiving.

An aunt, Rita Hunter, said the family would have a celebration that would be "beyond joyous - it will be awesome." Within 30 days of his release, Deejay Hunter must either obtain full-time employment or enroll in full-time schooling, Nastoff ordered, and also must attend counseling to address "personality and relationship issues" outlined in a mental-health evaluator's report.

Nastoff said Hunter must make abiding by these rules his top priority. If he messes up even once, the judge vowed to send Hunter to prison. Hunter's aunt wiped tears from her eyes and expressed gratitude that Nastoff kept her nephew out of prison, yet said she felt badly he's being kept away from sports. "I'm kind of happy and sad at the same time," she said. "It's kind of strict, but the judge had to do what he had to do."

Hunter, who pleaded guilty as charged in July, could have received up to eight years in prison for shooting a BB gun from a vehicle on a Middletown street in January, striking a 15-year-old boy in the face; one of the BB's struck the victim's eyelid. "You were probably an inch away from blinding someone," the judge told Hunter.

Nastoff said the victim's family wrote to him and said that Hunter had served enough jail time. Nastoff said he wasn't sure he agreed with that sentiment. "That's what kind of people they are. They're big people - big enough, in spite of what happened, to say maybe he's served enough punishment," Nastoff said.

Hunter, who wore No. 26 for the Middies at cornerback, attracted football scholarship offers from across the nation and had planned to sign a letter-of-intent with one of those colleges on national signing day, Feb. 4. Instead, he was sitting in jail. "Virtually every Division I school was interested in him," said Hunter's attorney, Frank Schiavone.

In track, Hunter ran the 100-yard dash in 10.2 seconds - but missed competing in the state finals because he was locked up for violating terms of his bond in the BB gun incident. Hunter, who graduated this spring, was also a good student, carrying a 3.4 grade-point average, Schiavone said.

Nastoff said the list of college scholarships meant nothing to him. "Do you know what I care about? How are you going to live - are you going to shoot people in the face?" Nastoff said.

Nastoff told Hunter he detected a possible "seed of empathy" because, among about a half-dozen speeches in court Thursday, "you were the only one that talked about what happened to the victim." Nastoff said the sentence was crafted to force Hunter to learn vital life lessons. "Find out who you really are without this whole aura of the athletics around you, because quite frankly in some ways it's made you a Frankenstein monster. It's made you think you're owed certain things," Nastoff said.

In addition to welcoming comments about whether this sentence is wise, I would also love to hear from anyone who thinks it might be constitutionally questionable.

The Sixth Circuit released an interesting unpublished ruling in US v. Simpson, No. 08-5293 (6th Cir. Sept. 16, 2009) (available here), which finds procedurally unreasonable a district court sentencing determination that failed to properly distinguish its departure authority and its post-Booker variance authority. Here are some key sections of the ruling (with cites left out):

Both at sentencing and in the STR, the court followed the same model of (1) calculating the Guidelines range; (2) determining if any of the mitigating factors presented “extraordinary circumstances” sufficient to justify a Guidelines departure; and (3) determining what sentence within the relevant range was justified in light of the factors set forth in § 3553(a). This approach is impermissible for several reasons....

This mistake significantly affected the sentencing court’s understanding of its authority because variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U.S.C. § 3553(a) include a much broader range of discretionary decisionmaking than departures. The district court’s statements indicate that it felt bound by the pre-Gall standard of review and the Guidelines’ restrictions on departures that require extraordinary or exceptional circumstances to justify a below-Guidelines sentence. As a result, the court dismissed some of Simpson’s mitigation evidence as unworthy of consideration when, in fact, the court was required to consider that evidence.

I am not sure what bothers me more — the fact that these basic issues remain murky nearly five years after the Booker ruling or the fact that the Sixth Circuit did not think clarifying these issues justified publishing this seemingly important Simpson decision.

California's court-ordered plan for prison population reductions to come up short

As detailed in this Sacramento Bee article, which is headlined "Schwarzenegger's prisons plan will fall short of judges' order," California's Governor will be filing today a plan to address overcrowding in the state's prisons, but the specifics might not make the special three-judge panel of federal judges too happy:

Schwarzenegger's Department of Corrections and Rehabilitation intends to file an inmate reduction plan with the court today, but the state's proposal will be well shy of the judges' inmate target, according to a legislative memo.
The plan will incorporate the package approved last week by the Legislature to cut the population by 16,000 inmates, as well as proposals to send 2,500 inmates out of state and 1,000 inmates to private prisons. It also will propose constructing new buildings on existing prison sites to house an additional 7,600 inmates....

Senate Republicans objected to Schwarzenegger's proposed prison cuts this summer, but they applauded the governor's approach to stop short of the three-judge panel's demands in his plan. They saw it as a potential legal strategy to challenge the federal judges, eventually forcing the U.S. Supreme Court to settle whether the federal government can mandate a release of prisoners.
"I assume the court is going to find this totally inadequate," said state Sen. George Runner, R-Lancaster. "I hope they find it inadequate, reject it and then we appeal to the Supreme Court."

Sen. Tom Harman, R-Huntington Beach, said his caucus believes the federal three-judge panel has overstepped its bounds. "The fundamental question is, do they have the jurisdiction and right to make these orders?"

The judges could respond by rejecting Schwarzenegger's plan and asking him to resubmit it. They could put the plan under a review process that ultimately results in a final order demanding greater inmate reductions.
Or the judges could hold Schwarzenegger and Corrections Secretary Matthew Cate in contempt.

Even if they are cited for contempt, it is unlikely the governor and prison boss would wind up in jail. Inmates' attorneys have said in the past they would not seek such an extreme penalty. But they questioned Schwarzenegger's approach Thursday.
"It is inexplicable to me why the governor would not submit to the court a modified version of the plan he submitted to the Legislature," said Donald Specter of the Prison Law Office, co-chief counsel for the inmates. "The governor said that that plan would not be a risk to public safety and, if enlarged slightly, would comply with the court's requirements."

He referred to a deal Schwarzenegger sought in July that called for a population reduction of 37,000 over two years. That plan would allow sick and elderly inmates or those in the final year of their sentences to finish serving time on home detention or in community hospitals wearing Global Positioning System tracking devices....

The plan Schwarzenegger intends to file today will not include the controversial alternative custody provisions, according to Runner.
If the plan proves unsatisfactory to the federal judges, "the state's officials are correct that they may be facing contempt proceedings," Specter said. "We will decide whether to pursue contempt after reviewing the state's final plan."

The other chief counsel for the inmates, Michael Bien, sounded a similar note. He said he believes state officials are running the risk of contempt "if the state's 'strategy' is to set up a confrontation with the three-judge court by defying the court's lawful order."

"Inmate Will Testify About Failed Execution"

The title of this post is the headline of this article from the New York Times concerning one of the ways in which Ohio's botched execution attempt has created some interesting legal action in on-going lethal injection litigation. Here are the details:

Two days after the execution of a convicted rapist-murderer was halted when technicians were unable to inject him with lethal drugs, a federal judge ordered Thursday that the inmate be deposed for a federal lawsuit challenging the constitutionality of Ohio’s lethal injection procedure.

The deposition for the inmate, Romell Broom, is set for Monday, a day before he is scheduled to be executed. His lawyers said they planned to file appeals in state and federal courts on Friday seeking to cancel or at least postpone his execution....

On Thursday, federal public defenders argued before the judge, Gregory L. Frost of Federal District Court in Columbus, Ohio, that evidence supporting their case against lethal injection would be irretrievably lost if they were not able to interview Mr. Broom before his death.

“He has relevant evidence that needs to be preserved,” said David C. Stebbins, an assistant federal public defender in Columbus. “Mr. Broom has, of course, the most relevant testimony of what exactly they did to him and the amount of pain he was put in.” The deposition is for a case in the Federal District Court for the Southern District of Ohio.

“The core of the complaint,” Mr. Stebbins said, “is that there are insufficient protections built into the Ohio procedures that guarantee it will be a painless execution, that the protocols are not sufficient to guard against mistakes and that they don’t cover all issues like in Mr. Broom’s case.”

As detailed in this Columbus Dispatch article, headlined "Second-try execution is 'cruel,' suit to say," Broom's lawyers will be filing their 1983 suit seeking to block his "re-execution." It is my understanding that this suit will be considered a related case to the on-going Ohio lethal injection lawsuit, which means that US District Judge Gregory Frost would get this case and make an initial ruling — perhaps as early as today? — about whether a stay is needed to consider the merits of Broom's new Eighth Amendment arguments.

As detailed in this pieceavailable at law.com, the "Senate on Thursday confirmed Gerard Lynch for the 2nd U.S. Circuit Court of Appeals, giving overwhelming approval to the Southern District of New York judge who presided over cases involving former basketball coach Isiah Thomas and recording artist Lil' Kim." Though Judge Lynch was elevated by a vote of 94-3, few future nominees seem likely to generate so much consensus:

While the nomination generated no significant controversy, the two parties made clear that future confirmations will turn into ideological battles in the Democratic-controlled Senate. The Judiciary Committee chairman, Patrick Leahy, said Republicans have been using Senate rules to block votes on judicial nominees while vacancies mount. There are 20 vacancies on the regionally based federal appeals courts and another 72 for the lower district courts. "We should not have to overcome filibusters and spend months seeking time agreements to consider these nominations," Leahy said. "It is imperative that we move to fill the growing number of vacancies throughout the federal courts."

Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, said that while he backed Lynch, "We're seeing a pattern of nominees who believe they have the power to amend the Constitution." Sessions voted against Lynch in 2000 when he was confirmed as a U.S. District judge, but said he is now satisfied that Lynch is not a judicial activist.

Judge Lynch went down so smooth in part, no doubt, because of his history as a crime-fighter: "He has served as a federal and New York state prosecutor, chief counsel for the New York State Commission on Government Integrity and an associate counsel in the Iran-Contra independent counsel's office."

Over at How Appealing, this post provides links to more press coverage of this notable first. And, as detailed in this prior post, Judge Lynch has an interesting and impressive record on sentencing issues. Moreover, as documented in lots of prior posts linked below, the broader issues surrounding Obama lower court nominees ought to be of great interest to sentencing fans:

September 17, 2009

Miami sex offender residency restriction upheld by state court

This Miami Herald story, headlined "Judge rules Miami-Dade sex-offender residency law is valid," reports on a new ruling in a high-profile case involving a local residency restriction in Florida. Here are the basics:

The American Civil Liberties Union of Florida failed to persuade a Miami-Dade circuit court judge to undo strict local ordinances that forced a group of convicted sex offenders to live under the Julia Tuttle Causeway.

In the suit, filed against Miami-Dade County, the ACLU argued Thursday the county's ordinance banning sex predators from living within 2,500 feet of schools conflicts with a state statute that sets the boundary at 1,000 feet. Essentially, the ACLU claimed there was an "implied preemption'' by the Legislature that local municipalities' ordinances would fall in line with the state's law.

But Miami-Dade Attorney Tom Logue countered that, if that were true, the Legislature would have clearly inserted the preemption into the statute. In fact, Logue pointed out, over the past few years, various lawmakers have tried and failed to change the sex offender residency restrictions to make local ordinances more consistent with state law.

Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?

This new AP article, headlined "Lawyers try to stop second Ohio execution try," reports on the latest legal news concerning Ohio's plan to try again to execute Romell Broom. Here are highlights:

Lawyers plan state and federal lawsuits and a request to Ohio Gov. Ted Strickland to stop next week's unprecedented second execution attempt of a man whose lethal injection failed on Tuesday.

Cleveland attorney Tim Sweeney said Thursday that he expects lawsuits to be filed no later than Friday in an effort to halt the next attempt to put Romell Broom to death. Sweeney argues that a second try at an execution is unconstitutional. At the very least, he said, Strickland should further delay Tuesday's execution.

Broom "sustained both physical and mental injuries," Sweeney said. "It's going to take time for all the psychic trauma to dissipate. Even if it never goes away, I think it's wrong to try to do it again so quickly in these circumstances."

Strickland stopped Broom's execution after executioners tried unsuccessfully for two hours to find a usable vein. Broom, who at one point wiped his face with a tissue and appeared to be weeping, told his attorneys he was pricked as many as 18 times.

Broom, 53, was sentenced to die for the rape and stabbing death of a 14-year-old Tryna Middleton, a girl he kidnapped in Cleveland in 1984. Cuyahoga County Prosecutor Bill Mason said it was ironic that Broom was complaining about the execution given the nature of his crime. "I am absolutely certain that it was Tryna Middleton that suffered from cruel and unusual punishment," Mason said.

Broom remains at the Southern Ohio Correctional Facility, where the prison system is monitoring how much he's drinking, said prisons spokeswoman Julie Walburn. Officials want to make sure Broom is not dehydrated before the execution, but they can't force him to drink more, she said. Dehydration could make it more difficult to find veins, however, Walburn said there's no evidence that caused Tuesday's problems....

Also Thursday, two federal public defenders asked U.S. District Court Judge Gregory Frost to order that Broom be made available to them for a legal deposition. The fact that Broom survived the execution "creates a singular opportunity to confirm that he, in fact, experienced serious pain in violation of his constitutional rights, not just a 'substantial risk' of serious pain," David Stebbins and Allen Bohnert argued in a court filing.

It was easy to predict that lots of litigation would ensure upon Ohio's indication that it wants to attempt to execute Broom again next week. But, as the title of this post flags, it is hard to predict if and when and how the US Supreme Court will be brought into this fray (and, for that matter, whether the usual amici suspects will be eager to jump into this high-profile and high-speed and unique lethal injection litigation). As I often have to say in these kinds of matters, stay tuned.

In addition to encouraging everyone to take the time to read the full US Constitution today, I thought it might be fun to celebrate today by asking readers to note in the comments what part or provision of the Constitution seems under-appreciated.

For fans of personal liberty and limited government like me, it is perhaps a bit too easy point to the Ninth Amendment as the most jurisprudentially under-appreciated provision of the Constitution. But, as I reflect on the modern document and also my affinity for modern American democracy, I am also a huge fan of the 15th, 19th and 26th Amendments, each of which extended and safeguarded voting rights. One reason I am often troubled by broad felon disenfranchisement laws is because I view the ever broaden of voting rights to be one of the many hallmarks of the greatness of this country.

Moving to a slightly different front, I think the 18th and 21st Amendments also should get a lot more love and attention as we consider our founding charter. Though a national prohibition on alcohol now seems quite foolish, at least the temperance movement used the constitutional amendment process to achieve its policy goals rather than simply declaring a "war on alcohol" and having the local police power used to this end.

And, even more importantly, once we collectively realized how foolish the 18th Amendment proved to be, we had the gumption and good sense to repeal it via the 21st Amendments. I like being able to point my kids to these amendments when I say that everyone makes mistakes, and that the truly wise are the ones who admit their mistakes and then seek to fix them.

Should President Obama be praised or assailed for his approach to judicial nominations so far?

Jeffrey Toobin has this really interesting article on President Obama's approach to judicial appointments in the New Yorker. Here are just a few notable snippets that ought to engage everyone:

Just eight months into his first term, Obama already has the chance to nominate judges for twenty-one seats on the federal appellate bench — more than ten per cent of the hundred and seventy-nine judges on those courts. At least half a dozen more seats should open in the next few months. There are five vacancies on the Fourth Circuit alone; just by filling those seats, Obama can convert the Fourth Circuit, which has long been known as one of the most conservative courts in the country, into one with a majority of Democratic appointees. On the federal district courts, there are seventy-two vacancies, also about ten per cent of the total; home-state senators of the President’s party generally take the lead in selecting nominees for these seats, but Obama will have influence in these choices as well. Seven appeals and ten district judges have been named so far. George W. Bush, in the first eight months of his Presidency, nominated fifty-two....

In recent years, the introduction of a Supreme Court nominee has become a major political undertaking. By the time the President announced his choice of Sotomayor, on May 26th, “there were two story tracks—‘eminently qualified’ and ‘an American story,’ ” an official who was involved with the rollout said. “The first part related to her judicial experience, which was more time as a federal judge than any nominee in a hundred years, but we also raised as a subtext her experience as a big-city prosecutor”—early in her career, Sotomayor was an assistant district attorney in Manhattan. “You always have to worry that a Democrat is going to be called soft on crime, but it’s harder to do that if people know she was a big-city prosecutor.”

Notable reactions in national and local papers in response to Ohio's "unexecuted"

Both the New York Times and the Columbus Dispatch have fascinating articles with lots of notable quotes concerning Ohio's difficulty on Tuesday trying to execute Romell Broom via lethal injection. First, this NYT article under the headline "Ohio Plans to Try Again as Execution Goes Wrong," includes these notable quotes:

[Broom's] lawyers described what happened Tuesday as torture and said they would try to block the execution. One of them, Adele Shank, said: “He survived this execution attempt, and they really can’t do it again. It was cruel and unusual punishment.” Ms. Shank watched Tuesday’s procedure on closed-circuit television. “I could see him on the screen,” she said, “and it was apparent to me that he was wincing with pain.”

The Ohio chapter of the American Civil Liberties Union said Wednesday that the state must abolish lethal injection. “This is the third screwed-up execution in three years,” said Jeffrey M. Gamso of the A.C.L.U. of Ohio. “They keep tweaking their protocol, but it takes more than tweaks. They don’t know how to do this competently, and they need to stop.”

In referring to two previous troubled executions in Ohio, Mr. Gamso was speaking of the death of Joseph Clark in 2006, delayed more than an hour because of problems with IV placement, and the 2007 execution of Christopher Newton, also delayed more than an hour while technicians tried at least 10 times to insert the IV.

The director of the state corrections department, Terry J. Collins, said he and his staff were seeking the advice of doctors and others to plan for a successful execution next Tuesday. “I won’t have discussions about ‘what if it doesn’t work next week’ at this point,” Mr. Collins said, “because I have confidence that my team will be able to do its job.”

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty, said problems with veins were inevitable in lethal injection by IV. Mr. Scheidegger said he favored execution methods involving intramuscular injection or a return to gas chambers, but with a poison other than cyanide, which was long under attack because of the suffering it can inflict.

The state does have a few options on the injections, said Dr. Sean Collins, an assistant professor of emergency medicine at the University of Cincinnati. Radiology equipment could be used to locate a vein farther under the skin, or a line could be inserted into the vein in Broom's neck. However, those procedures are typically done at hospitals -- usually by physicians. Ohio's execution team is made up of emergency medical technicians.

State prisons spokeswoman Julie Walburn said officials are assessing what the EMTs are qualified to do -- including possible "additional access points" that could be used for lethal injection. They are not allowed to do most medical procedures and "will not work outside the scope of what they're trained to do," she said....

On the legal front, Broom's attorneys, S. Adele Shank of Columbus and Timothy Sweeney of Cleveland, said they almost certainly will file legal challenges to block round two. Sweeney said Broom needs time to heal from what Broom told his attorneys were 18 different needle sticks in his arms and legs.

The attorneys will consider filing an appeal based on the Eighth Amendment prohibition on cruel and unusual punishment. "Ohio has a special statutory provision that requires executions to be 'quick and painless,' " Sweeney said. "This execution team has demonstrated clearly they're incapable (of) providing a quick and painless execution to Mr. Broom."...

Strickland said yesterday that the Broom case presented a "very unusual set of circumstances" that does not warrant an overall review of capital punishment in Ohio. "The EMTs, my understanding is, are adequately trained," the governor said. " ... My understanding is that the problem is associated with the physical condition of the inmate, not the inability of the EMTs to perform as they were required to perform."

But like anything in medicine, it takes practice to get good at inserting an IV line. Nurses at Ohio State University Medical Center, for example, can insert at least two IV lines a day. And if they have trouble getting one in after two tries, they'll ask someone more experienced. "It's a thing you have to keep doing and doing, and over time you get a feel," said Shirley McCoy, nursing staff-development specialist at the OSU Medical Center. "You can decide by looking and feeling the vein; it's just really a skill that nurses build up over time."

The EMTs on the state's execution team are primarily corrections employees who may work part time on local fire departments.

"Theorizing Fines"

The title of this post is the title of this new piece I just noticed on SSRN from Professor Pat O'Malley of the University of Sydney. Here is the abstract:

Given their central place as a sanction in criminal justice, the virtual absence of a theoretical literature on them is a serious deficit. The paper reviews the principal contributions to date, and argues that they suffer from a misleading conviction that sanctions are driven by production relations. To begin with, this seriously underestimates the impact of penal discourses and practice, which can better account for variations in the rise, uneven distribution and recent decline in fines' dominance as a punishment. Equally important is the failure to consider the nexus between the rise of the modern regulatory fine (for example 'on the spot' fines) and the rise of consumer societies.

From my perspective, it is not all that surprising that there is a virtual absence of a theoretical literature on fines in American academic literature because fines here in the US do not have a central place as a sanction except for traffic offenses. I sincerely wish and hope that one consequence of lean economic times and the high costs of imprisonment might lead some US jurisdictions to more seriously consider a great use of fines as a punishment for more serious offenses.

Using GPS in California to track sex offenders at county fair

This local articlehighlights an interesting use of GPS technocorrections as a means to keep California sex offenders away from a notable public region:

Law enforcement officials will use global positioning system tracking technology to monitor sex offenders at the Tehama County Fair this year, the Tehama County Sheriff's Office announced this morning....

Parole agents will establish an exclusion zone around the perimeter of the fair grounds for the duration of the event. The Redding GPS Parole Unit and Tehama County Sheriff's Office are teaming up to track and monitor the activities at the fair.

A sex offender parolee who enters the fair will set off an alert. Once a notification is received, on-site agents will track the offender's movement and investigate if any law, parole violation or any public safety issues exist and take appropriate action, said Tehama County Sheriff Clay Parker.

California is the nation's leader in using GPS technology to track sex offenders, Parker said. Today, Tehama County has just under 280 registered sex offenders, 59 of whom are parolees on active supervision. Every sex offender on active parole has GPS monitoring as part of their supervision.

September 16, 2009

UK advocate saying botched Ohio execution attempt should be US turning point on death penalty

I suspect that yesterday's botched execution attempt here in Ohio likely could become a big national and international story, and this new item from a UK paper confirms my suspicion. The piece is headlined "The American way of death:A botched execution in Ohio should quicken the end of capital punishment." Here are notable excerpts:

The botched attempted execution in Ohio this week of a murderer should prompt America to join the rest of the developed world in consigning judicial killing to history. There is inadequate evidence that it acts as a deterrent, it ignores the risk of miscarriages of justice and allows no room for repentance or correction. But above all it is a barbarity that stains civilised society....

A one-week reprieve granted by the Governor of Ohio may well be
extended indefinitely, partly because it is half a century since any
inmate was subjected to more than one execution, and partly because some justices of the US Supreme Court have now begun to wonder if botched lethal injections might not violate the eighth amendment ban on “cruel and unusual punishment”. Last year the court upheld the use of lethal injections. But Justice John Paul Stevens, while concurring, said that imposing the death penalty represented “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes”. Other justices are believed to share this view.

As this commentary notes, the Supreme Court back in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), actually signed off on the constitutionality of Louisiana making a second attempt at executing a capital defendant after a failed first electrocution effort. But, as Debby Denno notes in this StandDown post, Resweber can be distinguished in various ways. And, as we all know, the Eighth Amendment has always been said to evolve so that practices once constitutional (e.g., executing juves or those with retardation) can become unconstitutional.

UPDATE: I see that Andrew Cohen at CBS News has this lengthy piece posted under the headline "Can Ohio Execute the Same Man Twice?". In addition to raising an unintended metaphysical question, the piece makes these points:

The grisly details surrounding Broom's failed execution — which read like an outtake from the movie "The Green Mile" or a transcript from a torture probe — remind us that the United States Supreme Court did not come remotely close last year to fixing the many problems that still surround lethal injection in America. It's true that the Justices upheld Kentucky's lethal injection procedures. But those measures are different from the procedures in place in Ohio, a state that consistently has had problems over the past few years ensuring that its executions are swift and humane.

[I]t would be surreal if Ohio now were able to argue (under Chief Justice Roberts' new standard in Baze) that because it can't find any "feasible" and "readily implementable" alternatives to the current protocols it shouldn't be required to fix its obvious problems. And I'm just waiting to see if anyone in the Ohio Attorney General's office has the gall to argue to a federal judge that because so many of its recent executions have been excruciatingly long and painful they no longer should be considered "unusual" under the Eighth Amendment.

In the meantime, Broom waits — sore arms and legs and all. If he is "re-executed" he will become the first man in America since at least 1946 to achieve the dubious distinction, says Richard Dieter of the Death Penalty Information Center. That's some trivia that neither Ohio nor the United States Supreme Court ought to ignore.

The extra re-entry challenges for sex offenders after the Garrido case

After being locked away for 25 years for sex crimes, Donald Robinson moved to a little block of unassuming homes in this city on the San Francisco Peninsula on Aug. 27.
The timing couldn't have been worse. It was the day after Philip Garrido was arrested just 40 miles away on charges that he kidnapped 11-year-old Jaycee Lee Dugard and held her captive for 18 years despite his long criminal record as a sex offender.

Police distributed fliers in Robinson's new neighborhood, alerting residents that he was living there. He has been targeted by a protest rally organized by the mayor and daily picketing outside his house. And the state is paying two security guards $800 a day each to protect him.

Robinson's case underscores just how hard it is for the government to move sex offenders back into society, especially at a time there is widespread outrage over the Garrido case and the missed opportunities to catch him.
It's an issue that communities around the country have faced in an era when community notification laws in all 50 states let residents know where sex offenders live.

This AP article, which is headlined "No retrial for condemned man after judge-DA affair," reports on a notable ruling from the highest criminal court in Texas:

A Texas death row inmate won't be able to argue for a new trial, despite admissions of an affair between his trial judge and the prosecutor, a court announced Wednesday.

The Texas Court of Criminal Appeals ruled that convicted murderer Charles Dean Hood should have raised concerns about the affair between the now retired court officials in earlier appeals. The ruling overturned a lower court's recommendation that Hood be able to make his case for a new trial based on the affair.

This story from the Cleveland Plain-Dealer has more details on Ohio's botched effort to execute Romell Broom yesterday and some reactions to it:

For more than two hours, the team attempted to insert two shunts into a vein of the compliant Broom, who tried several times to assist his executioners by shifting positions, rubbing his arm and pointing out possible usable veins. The delay will likely add to the debate about the death penalty in Ohio and what constitutes cruel and usual punishment.

"The sentence is death, not torture plus death," said Kathleen Soltis, chairwoman of the Cleveland Coalition Against the Death Penalty. "What does reprieve mean in this case? This is getting crazier than usual."

At one point, Broom, 53, lay back on his bed, covered his face with his hands, and cried. Another time, while sitting up, he was seen grimacing as the execution team appeared to seek a vein around his ankles.

A reprieve at this stage of an execution has never happened since the death penalty was reinstated in 1999, said Terry Collins, director of the Ohio Department of Rehabilitation and Correction. He said he called the governor and asked for the reprieve after it became clear the execution team was having trouble. "I could tell my team was becoming somewhat frustrated," Collins said. The reprieve extends only until Sept. 22.

The drama played out before the family of Tryna Middleton, the 14-year-old girl Broom was convicted of kidnapping, raping and killing 25 years ago. Tryna's mother and father, Bessye and David Middleton, were there to witness the execution, as was an aunt. They sat in front of a glass window through which they were expecting to see Broom die.

Instead, he never made it out of his nearby cell, where two shunts were to be installed in veins. The shunts allow three drugs to enter the veins and sedate, paralyze and kill the inmate. The family and others watched the preparation on closed-circuit monitors mounted in the witness area. A camera filmed Broom and captured much of the difficulty the execution team had, as well as Broom's frustration. Broom requested no witnesses initially, but about an hour into the process asked for his attorney, Adele Shank, to be present.

A visibly upset Shank appeared in the witness room not knowing of Broom's request but out of concern for the length of time for the execution. "The chief justice and the governor have been notified of what's going on," Shank said after the execution team spent 90 minutes trying to insert the shunts.

Collins said the execution team was able to access several veins but they collapsed once saline solution was administered. He defended the execution team and said: "They continued to do a job that most wouldn't do or couldn't do."...

Shank, Broom's lawyer, said she is considering additional appeals. "We don't want to see a repeat of this ever," she said.

I suspect that Broom's lawyer (whom I happen to know and respect greatly) will have little trouble developing a federal Eighth Amendment claim based on what's happened to her client so far. But I am wondering about other possible legal issues that might be raised in this setting.

Moving beyond Broom, I am wondering if other defendants on death row in Ohio (or in other states that rely on lethal injection) might now have a due process right to access to any preserved video that apparently "captured much of the difficulty the execution team had, as well as Broom's frustration." I think that video would be relevant and important evidence for making constitutional claims surrounding lethal injection protocols in Ohio and perhaps in other states.

In the same spirit, might lawyers involve in other lethal injection litigation now seek to take Romell Broom's deposition? It seems that what Broom was experiencing physically (and perhaps also psychologically) would be relevant to claims surrounding lethal injection protocols. Could a federal court involved in some other lethal injection litigation order a stay of Broom's new September 22 execution date in order to preserve him as a possible witness in another proceeding?

And let's throw in a little First Amendment fun: does the media (and/or an interested and responsible blogger) have a right to access any preserved video that apparently "captured much of the difficulty the execution team had, as well as Broom's frustration"? Does the media have a right to access Broom himself to interview him about his experiences yesterday?

I could go on and on, but you all get the point of how much this real case now seems like a law school exam hypothetical. And, of course, what ultimately happens to Broom and broader debates over lethal injection in Ohio or elsewhere is much more important than being able to spot all the issues. Thus, I am interested in hearing predictions from any and everyone about what they expect to have happen next.

UPDATE:This article from CBS News highlights that the aboitionist community is already calling for a moratorium on all executions in Ohio:

The problems prompted the American Civil Liberties Union of Ohio to ask state officials to immediately halt executions. "Ohio's execution system is fundamentally flawed. If the state is going to take a person's life, they must ensure that it is done as humanely as possible," ACLU Ohio counsel Carrie Davis said. "With three botched executions in as many years, it's clear that the state must stop and review the system entirely before another person is put to death."

Data bleg on gender, crime, victims and punishment

For various reasons, I have been thinking a lot lately about the gender realities in crime and punishment, and I am starting a new scholarly project that call for citing some historical and modern data relating to gender, crime, victims and punishment. Thus, I thought it useful and wise to make this data bleg:

Can folks cite/link for me — either in the comments below or via e-mail — the best-known and/or most accurate and reliable historical and modern data breaking down with particularity gender dynamics surrounding criminal offending and crime victims?

I would also be interesting in gendered data concerning sentencing and punishment for various crimes in various eras. Thanks!

"Why Did China Reform It’s Death Penalty?"

The title of this post is the title of this interesting new paper by Kandis Scott that I just discovered on SSRN. Here is the abstract:

China recently reformed its death penalty procedures, and as a result the government has executed fewer prisoners. The author explores possible explanations for and policy concerns behind this change and evaluates their implications for the future of the death penalty in China. The influences for the change include international forces and domestic factors, such as academic criticism, the media, changed circumstances in society, compassion, and politics. Although hardly transparent, the underlying motivations for the revisions suggest that China eventually may abolish capital punishment, perhaps before the United States does so. However, recent signals indicate that officials may be ending the 'lenient' period, suggesting that the reforms may mean much less than thought initially.

What can and should be done about prison staff sex abuse of prisoners?

A helpful reader pointed me to this notable column by in the Washington Post, which is headlined "Chilling Findings in Report on Prison Sex Abuse." Here is how it starts:

Prisoners don't command much respect. Those who steal, rape and murder make life miserable for the rest of us and should pay for their actions. But when society puts them away, they must be treated decently, humanely and in accordance with the law.

So a report last week from the Justice Department's inspector general was particularly troubling because it detailed crimes by an unexpected group: federal employees who work in the prisons.

Inspector General Glenn A. Fine calls it "staff sexual abuse of federal inmates." The document paints a disgusting picture of federal employees who have disgraced themselves, shamed their professions and dishonored the federal service.

As my colleague Carrie Johnson reported Friday, the inspector general found that allegations of sexual abuse and misconduct had more than doubled from fiscal year 2001 through 2008. "These allegations increased at a faster rate than either the growth in the prisoner population or the number of BOP [Bureau of Prisons] staff," the IG's report says. "BOP officials told us they believe this increase is due to the BOP's efforts during this time period to educate and encourage staff and inmates to report abuse."

I suspect that this problem is not unique to federal prison facilities, and I wonder if this new report will lead to some positive developments on this front. I am not confident that persons involved in this kind of sex abuse are always effectively prosecuted and sentencing, though I am also not confident that a criminal justice response will be sufficient to address this problem that surely grows as prison populations grow.

"The Disutility of Injustice"

The retributivists and the crime-control instrumentalists have seen themselves as being in a irresolvable conflict for more than half a century. Social science increasingly suggests, however, that they need not be. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute's recent amendment to the Model Penal Code's "purposes" provision – the only amendment to the Model Code in the 47 years since its promulgation – adopts desert as the primary distributive principle for criminal liability and punishment.

That shift to desert has prompted concerns by two groups – ironically, two groups traditionally opposed to one another. The first group – those concerned with what they see as the over-punitiveness of current criminal law – worries that setting desert as the dominant distributive principle means continuing the punitive doctrines they find so objectionable, and perhaps will make things worse. The second group – those concerned with ensuring effective crime control – worries that a shift to desert will create many missed crime-control opportunities; it will increase avoidable crime.

The first group's concern about over-punitiveness rests upon an assumption that the current punitive crime-control doctrines of which they disapprove are a reflection of the community's naturally punitive intuitions of justice. However, as Study 1 makes clear, today's popular crime-control doctrines in fact seriously conflict with people's intuitions of justice by exaggerating the punishment deserved.

The second group's concern that a desert principle will increase avoidable crime exemplifies the common wisdom of the past half century that ignoring justice in pursuit of crime-control through deterrence, incapacitation of the dangerous, and other such coercive crime-control programs is cost free. However, Studies 2 and 3 suggest that doing injustice has real crime control costs. Deviating from the community's shared principles of justice undermines the system's moral credibility and thereby undermines its ability to gain cooperation and compliance and to harness the powerful forces of social influence and internalized norms.

The studies reported here give assurances to both groups. A shift to desert is not likely to either undermine the criminal justice system's crime-control effectiveness, and indeed may enhance it, nor is it likely to increase the system's punitiveness, and indeed may reduce it.

This Reuters article, which is headlined "Former General Re exec gets probation in AIG fraud," spotlights the sentencing benefits that often flow from being a white-collar cooperator. Here is how it starts:

A former executive of reinsurer General Re Corp was sentenced to two years probation and fined $10,000 after pleading guilty to helping American International Group Inc cook its books.

U.S. District Judge Christopher Droney, imposing the relatively mild sentence on Richard Napier, said he was taking into account the defendant's extensive cooperation with prosectors. Napier's testimony helped convict four former General Re executives and one former AIG executive in February 2008, according to prosecutors.

Napier in 2005 pleaded guilty to a conspiracy charge, admitting that he agreed to deals between General Re and AIG that allowed the former insurance heavyweight to artificially inflate its profits. Napier served as senior vice president of General Re, a reinsurance unit of Warren Buffett's Berkshire Hathaway Inc....

He could have been sentenced to up to five years in prison and fined $250,000. "Mr. Napier's cooperation with the government ... was of exceptional assistance," Droney said. "His testimony showed the extent of the sham reinsurance conspiracy."

September 15, 2009

More on Ohio's execution troubles and what could happen next

Ohio Gov. Ted Strickland on Tuesday gave a death-row inmate a one-week reprieve after authorities tried for hours to find a vein to administer his lethal injection. "Difficulties in administering the execution protocol necessitate a temporary reprieve," said Strickland's Warrant of Reprieve, filed in court Tuesday afternoon in the case of inmate Romell Broom.

Broom's defense attorney, Tim Sweeney, wrote Ohio Supreme Court Chief Justice Thomas Moyer on Tuesday that, "I am advised by my co-counsel, Adele Shank, who is at the prison in Lucasville, that the execution team has been attempting since approximately 1 p.m. this afternoon to obtain IV access to a site in Mr. Broom's body in order for the lethal injections to be administered, but without any success. "It appears ... that these efforts have been going on now for almost two hours, and that the execution team members have evidently now taken a 'break,' " Sweeney wrote....

"When such allegedly skilled professionals have taken this much time without successfully achieving IV access, there comes a point of diminishing returns, and a point when further attempts are cruel and counterproductive," Sweeney wrote to Moyer. "I believe we have reached that point here."...

Strickland's document directs the Ohio Department of Rehabilitation and Correction to carry out Broom's execution on September 22, "unless further reprieve or clemency is granted." Broom, 52, was convicted of abducting, raping and fatally stabbing a 14-year-old girl in East Cleveland in 1984, according to the Cleveland Plain Dealer newspaper.

Call me a cynic or a realist, but I think it is very unlikely that Broom's execution will go forward on September 22. As I noted in this prior post, the Sixth Circuit has recently been fighting over whether and how it can consider the merits of Ohio's lethal injection protocol, and I have to assume Broom's lawyers might get that court's full attention now. Also, Broom's lawyers might develop a new set of arguments to present to state courts based in state constitutional law contending that the state is not allowed try again to execute Broom after this failed attempt.

In modern times, a completely failed lethal injection execution is unchartered legal terrain, and Broom's lawyers are certainly going to urge state and federal courts to grant a stay so that have plenty of time to chart this terrain. Whether Broom avoids execution altogether is hard to predict, but I won't be at all surprised if Broom live a lot longer than just an extra week.

UPDATE: I just noticed this notable reaction from Kent Scheidegger at Crime & Consequences: "I have said from the beginning that the switch to lethal injection was a bad idea. All we needed to do to fix the gas chamber problem was use a different gas." I have an inkling that the Ohio legislature is unlikely to take this advice as the best response to its new lethal injection problem, but you never know.

One would think that, with four executions completed in the last few months, Ohio would now have its modern system of state killing down to a science. However, as this new AP report details, the state is having a very hard time completing an execution that was scheduled for 10am this morning:

A lawyer for a condemned inmate in the state death chamber says execution team members have taken a break after struggling to access the inmate's veins. Attorney Tim Sweeney says the team is having trouble inserting IVs into the arms of Romell Broom, sentenced to die for raping and killing a 14-year-old girl.

It was the second delay of the Tuesday execution, originally scheduled for 10 a.m. Broom entered the death chamber shortly before 2 p.m. after losing a last-minute appeal request.

In 2005, an execution was delayed for more than an hour after the team failed to properly attach an IV, an incident that led to changes in Ohio's execution process.

Though I am about to head to class, this seems like a story worth watching closely for a variety of reasons. First, I think this might be the first significant examples of a difficult (botched?) execution since the Supreme Court approved the constitutionality of lethal injection protocols in Baze last year. Second, as detailed here, the Sixth Circuit has been fighting over whether it can even consider on the merits a post-Baze challenge to Ohio's lethal injection procedures. Third, Ohio has lots more execution scheduled for the next few months, and these difficulties might end up causing some notable political ripples.

Whether and how this story becomes a big deal might turn ultimately on whether and how Ohio finishes its attempts to execute Romell Broom today. If Ohio cannot complete this execution (or if it completed the execution and lawyers can claim it was badly botched) this could become a huge story. But if the execution is completed with little final fuss, not so much. Stay tuned.

UPDATE:This local story now indicates that Ohio's Governor has stepped in: "Strickland ordered a week-long reprieve this afternoon after executioners struggled for about two hours to locate suitable veins for inserting IVs into 53-year-old Romell Broom." As suggested above, this could become a big story if the abolitionist community seeks to jump on it. But I suspect that, in the wake of Baze, most of the abolitionist community has moved on to other battle-fronts.

The technical challenges posed by technocorrections

I just discovered this local article out of Florida last week, which is headlined "Judge: Hairspray falsely triggered alcohol-monitoring device." For fans of technocorrections, this story is a bit sobering:

A 17-year-old girl’s alcohol-monitoring device was triggered by continued exposure to hairspray, not consumption to alcohol, a judge ruled Thursday. “Based on the evidentiary hearing today, the court would find that it appears that the detection made by (the alcohol-monitoring device) was a false positive and so, based upon that, I’m not going to revoke her pre-trial release,” Walton County Circuit Judge Kelvin Wells said.

Elyse Tirico, formerly Elyse Bushee, is charged with DUI manslaughter and DUI with serious bodily injury in connection with a Jan. 4 accident that killed 16-year-old Meghan Burkhart-Smith, a fellow student at South Walton High School. Her trial originally was scheduled to begin on Monday but has been continued to Jan. 11, 2010.... Tirico has been wearing the anklet since late March under a court order.

Jeff Hawthorne, who is the co-founder of Alcohol Monitoring Systems Inc. and who invented the SCRAM (Secure Continuous Remote Alcohol Monitor) anklet, testified at the hearing. He said SCRAM detects blood-alcohol levels through perspiration. The device takes readings every 30 minutes, Hawthorne said. It issued an alert July 15 after three separate readings showed that Tirico’s blood-alcohol level was above .02.

But under questioning by defense attorney Clay Adkinson, Hawthorne said an alert could have been issued even if Tirico had not consumed alcohol. He said wearers of the device are given a list of so-called “banned products” that contain alcohol — including certain toiletries, perfumes and cleaning supplies — in order to avoid false alerts. When Adkinson asked whether continual exposure to hair spray might trigger an alert, Hawthorne said it might.

The detection device showed that alcohol was in Tirico’s system from 9:38 a.m. to 6:48 p.m. July 15, but Hawthorne said he had no way of knowing where Tirico was during those hours. Tirico works as a receptionist at a hair salon in Miramar Beach. Adkinson said that the alert was triggered by hairspray, which she was exposed to July 15. He also presented several affidavits from people who said they were with her early that day and that she did not appear to be under the influence of alcohol.

Interestingly, the private company that produce the alcohol-monitoring device has this new press release concerning this case, which includes these statements:

The manufacturer of SCRAM alcohol bracelets is countering reports that their alcohol-sensing ankle bracelets falsely confirmed a drinking event because of exposure to hairspray for a Florida defendant out on bond for a DUI manslaughter and DUI with serious bodily injury case. The bracelets, worn 24/7, sample an offender's perspiration every 30 minutes in order to measure for alcohol consumption.

According to Colorado-based Alcohol Monitoring Systems (AMS), the confusion is based on the difference between an "alert" generated by a product like hairspray and an actual confirmed drinking event. The company reports that due to procedural issues at the hearing, the judge did not hear evidence to explain the difference between an environmental exposure to hairspray and actual consumption, resulting in confusion in the ruling and reports about the case. Notably, Judge Kevin Wells ordered the defendant to continue wearing the SCRAM Bracelet.

AMS President and CEO Mike Iiams says that alcohol-containing products like hairspray will oftentimes generate an alert, but that the SCRAM System can easily distinguish between exposure to environmental alcohol and actual consumption....

Launched to the corrections market in 2003, SCRAM has monitored 110,000 offenders in 47 states and more than 1,900 jurisdictions. AMS is the only electronic monitoring company in the criminal justice system to provide in-depth court support and expert testimony.

There is a lot that could and should be said about both of these items, and I hope in future posts to blog more on both topics. Looking at the issues together, however, I quickly come to the view that it would be nice to see at least some of the pro-liberty and anti-government sentiments being expressed by "tea parties" focused on criticizing and dismantling modern marijuana policies.

Editorial suggests why federal judges have had to be involved in California prison reform

The Sacramento Bee has this effective new editorial reviewing all the latest California prison reform happenings, which is headlined "Assembly invites judges to intervene." Here are excerpts:

Gov. Arnold Schwarzenegger has until Friday to submit a prison population reduction plan to a three-judge panel of the 9th U.S. Circuit Court of Appeals. In a terse two-sentence order, the U.S. Supreme Court denied an attempt at delay.

Three years ago, Schwarzenegger declared a state of emergency in the prisons. Overcrowding, he said, "causes harm to people and property, leads to inmate unrest and misconduct, reduces or eliminates programs, and increases recidivism as shown within this state and in others."

He has presented countless proposals, backed by expert testimony, to reduce prison population. But he has been rebuffed time and again by legislators. So the three-judge panel finally stepped in, establishing a prison population cap on Aug. 4. Prisons designed for 80,000 prisoners hold more than 148,000 today. The cap, set at 137.5 percent of design capacity, would bring the population to 110,000 within two years.

The Legislature could have passed a feasible and timely proposal to reduce prison population before leaving town last Friday. Instead, driven by a cowering Assembly, the package finally sent to the governor's desk was watered down. The final bill would reduce the prison population by 7,500. While that helps, it does not come close to the 38,000 needed over two years.

The Assembly killed an item that would allow some lower-risk, older, ill prisoners to serve the last 12 months of their sentences under house arrest with GPS monitoring. All told, the Assembly killed reforms that would have reduced prison population by an additional 12,300. And it left out the key long-term reform: establishing an independent, professional sentencing commission. Those items will have to wait until January, when the Legislature returns to session. In the meantime, the state has to submit a plan to the court by Friday....

So the Assembly has tied the state's hands, making it all the more likely that the three-judge panel will have to lay down actual, feasible and timely ways to get to a prison population of 110,000. Lawmakers then will predictably whine about the intervention of the courts. But if they'd do their job, the courts wouldn't have to do it for them.

Relatedly, the Wall Street Journal ran this interesting piece this past weekend, which was headlined "Crime Makes a Comeback in California Politics: Early parole and prisoner releases could put an old issue back on the agenda." It puts all these recent political debates in modern historical contexts and looks forward to how all these issues might play out in the 2010 race for Governor in California.

This new article from the National Law Journal, which is headlined "Blogger Charged With Threatening 7th Circuit Judges Gets Home Confinement," reports on the latest developments in a notable federal criminal case:

U.S. District Judge Donald Walter has ordered the release of Internet blogger and Web talk show host Hal Turner, who was arrested in June for declaring in an online posting that three Chicago-based federal judges "deserve to be killed."

Turner is on his way back to his home state of New Jersey after Walter decided in a Wednesday conference call meeting with lawyers that Turner could be released under "strict conditions," including a prohibition on his speaking to the media, home confinement and electronic monitoring, said Michael Oroczo, who represents Turner. He said his client was currently in the U.S. Marshal Service's custody in Oklahoma City as he's being transferred to New Jersey....

The release order by Walter, a U.S. district judge from Western Louisiana who was assigned the case to avoid potential bias, runs counter to a decision made last month by Chicago-based U.S. Magistrate Judge Martin Ashman, who found that Turner should remain in custody until his trial. It's not clear if a bond amount was set for the release.

Turner was charged by the U.S. Attorney's Office in Chicago with threatening to assault and murder three judges in retaliation for a June 2 decision they made. In a Web posting the same day, Turner called the 7th Circuit ruling, which declined to overturn laws banning handguns in Chicago and a nearby suburb, an "outrage" and said that the judges behind the decision "deserve to be killed." The judges who decided the case were Chief Judge Frank Easterbrook, Judge Richard Posner and Judge William Bauer. In a second posting on June 3, Turner provided the names, work addresses, phone numbers and photos of the judges.

Walter last week also allowed Turner's case to be transferred to the Eastern District of New York, granting his request for a change of venue from Chicago to Brooklyn. Walter granted the venue change partly because he agreed the defendant would have a harder time getting a fair trial in Chicago where there was significant media coverage of the 2005 murder of U.S. District Judge Joan Lefkow's mother and husband.

Turner said in his postings that federal judges in Chicago hadn't gotten "the hint" from those killings. "Memories are not so short as to erase the event from the public mind," Walter wrote in a Sept. 8 decision. "On balance, it is this court's opinion that granting the motion would best serve, not only justice, but the appearance of justice.

Interesting empirical study of sentencing in Nevada

I just came across this paper on SSRN, titled "Felony Sentencing in Rural and Urban Courts: Comparing Formal Legal and Substantive Political Models in the West." Here is the abstract:

This study explored two models of sentencing in urban and rural districts in Nevada (2007 felony sentencing data, N=10,873). It was hypothesized that sentence lengths and dispositions would differ between rural and urban districts. Furthermore, it was hypothesized that urban districts would follow a formal legal model – in which only legal variables (crime features, criminal history) act as predictors of sentencing outcomes, whereas rural districts would follow a substantive political model – in which extralegal factors (age, sex, race / ethnicity, etc.) also predict sentencing outcomes. The authors found that urban and rural districts in Nevada conformed to a substantive political model of sentencing (including both legal and extralegal factors), though legal factors were often the strongest predictors of sentencing outcomes.

I have long thought that a lot more could be learned from the careful study of modern state sentencing systems, and this helpful paper confirms my desire to see more researchers analyzing more state sentencing patterns.

September 14, 2009

Third Circuit approves of fast-track variances based on Kimbrough

In what looks to be a long and thoughtful opinion, the Third Circuit today in US v. Arrelucea-Zamudio, No. 08-4397 (3d Cir. Sept. 14, 2009) (available here), has ruled that federal sentencing judges in non-fast-track districts can grant fast-track variances. Here is the start of today's must-read federal sentencing opinion:

In certain federal judicial districts, “fast-track” programs allow qualifying immigrant defendants to plead guilty while waiving, among other things, their appellate and post-conviction rights. In turn, the Government agrees to request a departure from the relevant Sentencing Guidelines range. None of the districts in the Third Circuit is a fast-track district.

Pedro Manuel Arrelucea-Zamudio (“Arrelucea”) pled guilty to illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2). The District Court sentenced him to 48 months’ imprisonment. Arrelucea appeals his sentence, challenging, among other things, the Court’s rejection of his argument for a downward variance based on the disparity in sentencing among immigration defendants in fast-track districts and non-fast-track districts. The Sentencing Guidelines are advisory, and the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558 (2007), has rekindled discussion regarding fasttrack districts and sentencing. The question before us is whether, post-Kimbrough, it is an abuse of a sentencing judge’s discretion to consider varying from the Sentencing Guidelines in a non-fast-track jurisdiction based on the disparity created by lower immigration sentences in fast-track jurisdictions. Prior to Kimbrough we addressed this issue in United States v. Vargas, 477 F.3d 94 (3d Cir. 2007). We take this opportunity to clarify Vargas and expand on the issue in light of the Supreme Court’s recent guidance. We conclude that, under the logic of Kimbrough, it is within a sentencing judge’s discretion to consider a variance from the Guidelines on the basis of a fasttrack disparity.

UK gives life with parole for terrorists convicted of airline bomb plot

This new CNN article, which reports on three high-profile terror defendants getting sentenced in London, provides an interesting point of comparison concerning life sentences in the US and other parts of the world. First, here are the basics:

Three men convicted of plotting to bomb planes flying from London to North America with liquid explosives hidden in soft drink bottles were ordered imprisoned for life, a judge announced Monday.

The men were arrested in August 2006 on suspicion of plotting to blow up planes with liquid explosives hidden in soft-drink bottles. The plot led to immediate restrictions on liquids that passengers are allowed to carry onboard aircraft, resulting in today's rules that allow only small amounts to be carried in resealable clear plastic bags.

The judge, Justice Richard Henriques, called the plot "the most grave and wicked conspiracy ever proven within this jurisdiction." "The plot would have succeeded but for intervention of police and security services," he said, rejecting a defense argument that the men would have failed to get the chemistry right and actually blow up planes.

The ringleader, Abdulla Ahmed Ali, 28, must serve at least 40 years before he is eligible for parole, the judge said. He is "likely to remain a serious danger to the public for a long time," the judge, Justice Henriques, said. "You are a driven and determined extremist with boundless energy."...

A second plotter, Assad Sarwar, 29, must serve a minimum of 36 years before he is eligible for parole. Henriques gave him a lesser sentence on the grounds that he was not the ringleader of the plot and not involved in recruiting other people for it. The third man convicted of the plot, Tanvir Hussain, 28, must serve at least 32 years, the judge said, calling him "no mere footsoldier."...

British prosecutors called the plot "calculated and sophisticated" and said it could have killed hundreds or even thousands of people.

So, let's review the stories of life sentencing in the UK and the US in light of this case another set of high-profile cases:

In the UK today, a "driven and determined extremist with boundless energy," who was the ring-leader of "the most grave and wicked conspiracy ever proven," which could have killed thousands of people, is sentence to life with parole eligibility.

Meanwhile, in the US in two months, the Supreme Court will consider the constitutionality of Florida's decision to send two juvenile defendants, one of who was involve in a rape at age 13, the other committed armed robberies at 16 and 17, to life without parole eligibility.

Putting these stories together raises an important and controversial constitutional question: should the fact that even the most extreme terrorists do not get LWOP sentences in other parts of the world have any bearing on whether juve LWOP sentences for non-homicide crimes in the US constitutes "cruel and unusual punishment" prohibited by the Eighth Amendment?

"Citizens with Guns: Firearms & American Identity"

The title of this post is the title of a new article from Pratheepan Gulasekaram, which seems especially timely in light of the recent presence of gun-toting folks at various health-care town halls last month. Also, as the abstract reveals, the article should also be of interest to anyone concerned with the Heller court's suggestion that all felons can be categorically excluded from the Second Amendment:

This article examines the relationship between firearms and American citizenship, both as a matter of legal status and as a matter of perceived American identity. To do so, this article will explore the link between guns and citizenship as textual matter, a historical and legal narrative, and a symbolic bond. First, this paper will examine Heller’s largely unnoticed contention that the Second Amendment benefits only citizens. Such an inquiry requires a comparative analysis of other provisions of the constitution that similarly enumerate the right of “the people.” In addition, this article analyzes the historical and legal connection between the right to bear arms and status citizenship, noting the relationship between arms-bearing, racialized conceptions of U.S. nationality, and increasing immigration throughout the country’s history. To complete the exploration, this paper will also consider the symbolic importance of gun-toting in the American legal and cultural landscape. Here, the article dissects the manner in which gun-related incidents have been used to code some individuals and circumstances as part of the American narrative, while others are coded as foreign and anathema to the American identity.

Michigan looking at its (many) juve life sentences

These two new articles in the Detroit News spotlight that "Michigan is among a growing number of states reconsidering whether juveniles should be sentenced to life behind bars with no chance of parole":

Teens can be sentenced to mandatory life in prison without parole in most states. But Colorado, Kansas, Kentucky, New Mexico, Oregon and Texas have outlawed such sentences.

The Michigan House Judiciary Committee is considering bills that would allow those serving such sentences to be considered for parole, or ban such sentences. Two hearings have been held so far, and the committee plans to propose a package of bills addressing the issue later this fall, according to Rep. Mark Meadows, D-East Lansing, the committee chairman. "It was very emotional testimony -- we had victims' families testify, prosecutors testify, relatives of children in prison testify," Meadows said.

Michigan's high number of teens sentenced to life in prison without parole has child advocates questioning laws that give judges that option. Behind bars are 346 teens who are serving life without parole for crimes they committed between the ages of 14 and 17, according to the Department of Corrections.

A study by the University of Texas says Michigan has the second most such inmates in the country. The report also says Michigan is among the harshest in the way it treats teens accused of major crimes.

September 13, 2009

"Disproportionate Sentencing for Possession of Child Pornography: Witchcraft Trials of the Modern Age?"

The title of this post is the title of this notable student note by Jesse Basbaum that I just noticed on SSRN. Here is the abstract:

This Note identifies several infirmities of United States Sentencing Guideline section 2G2.2, the sentencing scheme for possession of child pornography. The production and web-based dissemination of child pornography images has increased substantially over the past decade. The Department of Justice has aggressively prosecuted these crimes under the rationale that (1) possession of child pornography leads to contact offenses, (2) demand drives supply, and (3) the mere availability of an image or video constitutes continued and indirect abuse of the child depicted. In light of these and other concerns, Congress has enacted dramatic increases in the potential sentences for possessors of child pornography. In this Note, I will argue that the Sentencing Commission should amend the guidelines for possession of child pornography because, (1) the guidelines are the result of 'morality earmarks' rather than the product of empirical or academic study; (2) the empirical evidence calls into question the asserted link between possession of child pornography and future sexual assaults of children; and (3) by failing to consider the nature of internet downloading, most of the 'enhancements' are actually part of the core offense of possession. Several federal district courts have cited these and other deficiencies in their decisions to sentence defendants below applicable guideline ranges. Though the Supreme Court’s recent decisions in Rita and Kimbrough permit trial courts to disregard sentencing guidelines that lack empirical basis, most courts still rely heavily on the guidelines to impose lengthy sentences. Accordingly, I propose that the Sentencing Commission amend section 2G2.2 in a manner that reflects the tenuous connection between possession and contact offenses, and in light of the realities of Internet use.

Virginia prosecutors seeking November execution date for DC sniper

This CNN article details that Virginia prosecutors are hoping to execute the condemned DC sniper, John Allen Muhammad, before the end of this year:

Virginia prosecutors are asking a state court to set a November 9 execution date for John Allen Muhammad, convicted in a series of sniper-style shootings that terrorized the Washington area in 2002. In a letter dated Wednesday, Senior Assistant Attorney General Katherine B. Burnett said the November date "has been carefully coordinated with the governor's office to insure his availability for any clemency petition Muhammad may wish to pursue." Burnett enclosed a copy of a proposed execution order "for the court's convenience."

Muhammad's attorney said he will file an appeal with the U.S. Supreme Court, and will ask the governor for clemency. During a three-week period in October 2002, police say, Muhammad and his young protege, Lee Boyd Malvo, shot 13 people, killing 10. The two also are suspected in other shootings and murders in Tacoma, Washington, Montgomery, Alabama, and the Washington, D.C., area.

Muhammad, now 48, was convicted of murder in the death of Dean Harold Meyers at a Manassas, Virginia, filling station. Meyers was killed by a single bullet, which became the signature of the two-person sniper team.

Ultimately, Muhammad was convicted of the Meyers' killing and of one Maryland murder, which prosecutors there said was "insurance" in case the Virginia conviction was overturned. Malvo was convicted of one Virginia shooting and was sentenced to life imprisonment....

The letter, addressed to the chief judge of the Prince William County Circuit Court, says the court must hold a hearing within 10 days of receiving the letter, and must set an execution date no later than 60 days after the hearing.